UPENDRA DHAL Vs. GOURANGA PRASAD SAHOO

JUDGEMENT

(1.) THE Appellant in the present Writ Appeal assails the legality/validity of the judgment dated 12.08.2013 passed by the learned Single Judge in W.P.(C) No.11859 of 2013 upholding the judgment/order dated 29.03.2013 passed by the Civil Judge (Junior Division), Jajpur (for short, 'Election Tribunal') in Election Case No.7 of 2012 and the appellate order dated 14.05.2013 passed by the District Judge, Jajpur (for short, 'Appellate Authority') in Election Appeal No.9 of 2013.

(2.) APPELLANT 's case in a nut shell is as follows: The election for the post of Sarapanch of Bitana Grama Panchayat in the district of Jajpur was held on 15.02.2012. The appellant and respondent No.1 along with other candidates filed their nominations. The nomination of the appellant was challenged by respondent No.1 before the Election Officer on the ground that the appellant has three children after the cutoff date. The said objection was rejected. The appellant won the Election as 1443 votes were polled for the appellant and 1394 votes were polled for respondent No.1. Accordingly, the present appellant was declared as returned candidate and as Sarapanch of Bitana Grama Panchayat. Challenging the election of the appellant, petitioner respondent No.1 filed an Election petition under the Orissa Grama Panchayat Act, 1964 (for short, 'the Act, 1964') before the Election Tribunal, i.e., the Civil Judge (Junior Division), Jajpur being Election Case No.7 of 2012. Written statement (Annexure 2) was filed taking a ground that the Election Case was filed without being supported by any affidavit as required under Section 33(2) of the Act, 1964 read with Order VI, Rule 15(4), CPC. Respondent No.1 never asked for curing the defect. Learned Election Tribunal with the above defect tried the Election petition on merit and nullified the election of the appellant as Sarapanch vide Order dated 29.03.2013 (Annexure 3). Being dissatisfied, the appellant filed Election Appeal No.9 of 2013 before the designated Appellate Authority, which was dismissed upholding the order dated 29.03.2013 of the Election Tribunal vide order dated 14.05.2013 passed under Annexure 4. Learned Appellate Authority has affirmed the order of the trial Court on merit without recording any finding as regards the maintainability of the proceeding in absence of curing the defect which is in contravention of Section 33(2) of the Act, 1964 read with Order VI Rule 15(4), CPC. Challenging the order passed under Annexure 4, the appellant filed a Writ Petition before this Court on the ground that the Election petition was put to trial by the Election Tribunal with incurable defect as the Election petition was not supported by affidavit and that he had no 3 rd child on the date of filing the nomination. Name of the 3rd child disclosed by the respondent No.1 is not his child and happens to be the natural daughter of Gajendra Dhala and Susamarani Dhala. The Writ Petition was disposed of on 12.08.2013 under Annexure 5 holding that non compliance of Section 33(2) of the Act, 1964 read with Order VI, Rule 15(4), CPC is a curable defect and non curing of the same is not fatal and does not affect the maintainability of the Election petition. On that sole ground, the Writ Petition was dismissed and the order of Election Tribunal as well as the Appellate Authority disqualifying the appellant for the post of Sarapanch of Bitana Grama Panchayat was upheld. Hence, the present Writ Appeal.

(3.) MR .S.S. Das, learned counsel appearing on behalf of respondent No.1 submitted that the appellant cannot, as a trickster, escape from the rigours of Law on the ground of mere technicality which does not have any nexus or bearing on the merit of the case, particularly when it has been categorically established beyond any reasonable doubt that the appellant got himself elected as Sarapanch of Bitana Grama Panchayat in the district of Jajpur by committing fraud and misrepresentation. The trial Court as well as the Appellate Court has taken into consideration both oral and documentary evidence and come to the conclusion that the appellant had earned disqualification with the scope and ambit of Section 25(1)(V) of the Act, 1964 as he has more than two children after the commencement of Orissa Grama Panchayat (Amendment) Act, 1994. Placing reliance on Section 99, CPC, Mr.Das submitted that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal, on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. The present election proceeding in pith and substance being a Suit and the trial culminating into its finality through the judgment dated 29.03.2013 passed by the trial court and confirmed by order dated 14.05.2013 in Election Appeal No.9 of 2013, there remains no scope for interference at this level on the sole ground that the Election petition suffered from a defect due to want of an affidavit as required under Order VI Rule 15(4), CPC though verification was made by the appellant in consonance with Order VI, Rule 15(1), (2) and 3, CPC. In support of his contention, Mr.Das relied on a judgment of the Hon'ble Supreme Court in the case of Kiran Singh and others Vs. Chaman Paswan and others, AIR 1954 SC 340.